This decision was not selected for publication inthe New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Please also note that this electronic decision may contain computer-generated errors or other deviations from the official paper version filed by the Supreme Court and does not include the filing date. IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 1 Filed: November 7, 2013 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4

v. NO. 33,290 5 MOISES MARTIN MENCHACA, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 8 Fernando R. Macias, District Judge 9 Bennett J. Baur, Acting Chief Public Defender 10 Nina Lalevic, Assistant Appellate Defender 11 Santa Fe, NM 12 for Appellant 13 Gary K. King, Attorney General 14 Ann M. Harvey, Assistant Attorney General 15 Santa Fe, NM 16 for Appellee 17 DECISION 182 CHÁVEZ, Justice. 1 {1} Moises Menchaca appeals directly to this Court from a life sentence stemming 2 from a conviction of first degree murder. Menchaca was convicted of one count of 3 willful and deliberate murder contrary to NMSA 1978, Section 30-2-1(A)(1) (1994). 4 Menchaca was also convicted of conspiracyto commit first degree murder, shooting 5 at a dwelling or occupied building, aggravated battery, and aggravated assault with a 6 deadly weapon. On appeal, Menchaca presen ts the following arguments: (1) the four7 year delay in bringing him to trial violated his constitutional right to a speedy trial, (2) 8 his trial counsel was ineffective for failing toassert his speedy trial right earlier in the 9 proceeding and failing to properly impeach the two co-defendants, (3) the district 10 court erred in admitting Menchaca’s cell phone records, (4) the district court erred in 11 not holding an evidentiary hearing on alle ged prosecutorial misconduct, (5) a proper 12 chain of custody was not established for the admission of Menchaca’s red shirt and 13 cell phone, and (6) his convictions were not supported by sufficient evidence. We 14 reject each of Menchaca’s arguments and affirm his convictions. 15 FACTS 16 {2} On the night of September 7, 2007, Menc haca went to a party with two of his 17 friends, Benjamin Tapia and Isaac Ramirez. A fight broke out and the three friends 183 left after the host punched Menchaca in the f ace. They armed themselves and returned 1 to the party. Menchaca ope ned fire on the house, killing one guest and injuring two 2 others. Menchaca’s case took almost four years to litigate. The facts are further 3 developed in the appropriate sections of this decision. 4 DISCUSSION 5 I. MENCHACA’S SPEEDY TRIAL RIGHTS WERE NOT VIOLATED 6 {3} Menchaca argues that the forty-seven month pre-trial delay denied him his 7 constitutional right to a speedy trial. U.S. C onst. amend. VI; N.M. Const. art. II, § 14. 8 According to Menchaca, the n early four-year delay is presumptively prejudicial, and 9 the reasons for the delay weigh against th e State. Menchaca also argues that he 10 sufficiently invoked his speedy trial rights by asserting them shortly before trial. 11 Finally, Menchaca argues that he suffered actual prejudice from the delay because of 12 the death of an exculpatory witness. 13 {4} We evaluate speedy trial claims by balancing the factors articulated in Barker 14 v. Wingo , 407 U.S. 514, 530-32 (1972): “(1) the length of the delay, (2) the reasons 15 given for the delay, (3) the de fendant’s assertion of the rightto a speedy trial, and (4) 16 prejudice to the defendant.” State v. Collier , 2013-NMSC-015, ¶ 39, 301 P.3d 370 17 (internal quotation marks and citation omitted). “On appeal, we give deference to the 184 [district] court’s factual findings, but we review the weighing and the balancing [of] 1 the Barker factors de novo.” Id. (alterations in original) (internal quotation marks and 2 citations omitted). 3 A. The length of delay was presumptively prejudicial 4 {5} Menchaca argues that the length of th e delay in his case was presumptively 5 prejudicial and should weigh in his favor. We agree. In State v. Garza , 2009-NMSC6 038, ¶ 48, 146 N.M. 499, 212 P.3d 387, we i ssued guidelines for determining when 7 a delay is presumptively prejudicial. Under the Garzaguidelines, a delay of eighteen 8 months is presumptively prejudicial for complex cases. Id. 9 {6} That this case was complex is beyond dispute. Menchaca was charged with 10 nine counts, including a capital offense; his case was joined with the cases of two co11 defendants; the shooting involved multiplevictims, requiring extensive forensic 12 analysis; and the case involved more thaneighty witnesses and 885 pages of written 13 discovery. Under the Garzaguidelines, a delay of eighteen months in complex cases 14 such as this one is presumptively prejudicial. Id. Menchaca was arrested on 15 September 8, 2007, and trial commenced on August 5, 2011, constituting a delay of 16 forty-seven months. Therefore, Menchaca’s trial delay was presumptively prejudicial. 17 {7} However, length of delay alone is not dispositive. Barker presents a balancing 185 test, and no one factor alone is sufficient to find a violation of the right. See Garza , 1 2009-NMSC-038, ¶ 23. “[A] ‘presumptively prejudicial’ length of delay is simply a 2 triggering mechanism, requiring further inquiry into the Barker factors.” Id. ¶ 21. 3 Thus, finding Menchaca’s delay presumptively prejudicial does not end the inquiry 4 into whether his speedy trial rights were violated; instead, we balance the other Barker 5 factors. 6 B. The reasons for delay do not weigh heavily against the State 7 {8} We examine the second Barker factor by “allocating the reasons for the delay 8 to each side and determining the wei ght attributable to each reason.” State v. 9 Tortolito , 1997-NMCA-128, ¶ 8, 124 N.M. 368, 950 P.2d 811. There are three types 10 of delay, each of which carries a different weight. Garza , 2009-NMSC-038, ¶ 25 11 (citing Barker , 407 U.S. at 531). First, prosecutori al “‘bad faith in causing delay will 12 be weighed heavily against the government.’” Id. (quoting Doggett v. United States , 13 505 U.S. 647, 656 (1992) (citation omitted)). Second, negligent or administrative 14 delay weighs less heavily against the government. Id. ¶ 26. Finally, delays for “‘a 15 valid reason, such as a missing witness, should serve to justify appropriate delay.’” 16 Id. ¶ 27 (quoting Barker , 407 U.S. at 531). 17 1. Delay attributable to Menchaca 181 Although Menchaca now argues that he did not have notice of the stipulated 13 order, we attribute the stipulated order to Menchaca for several reasons. First, the 14 grounds for the order included providing moretime for Menchaca to schedule witness 15 interviews and allowing counsel for co-defendant Ramirez to conduct a death penalty 16 trial. The stipulated order was sought by defense counsel to be nefit the defense, so 17 we do not attribute the delay to the State. Second, the record reflects three 18 unsuccessful attempts to contact Menchaca’ s counsel regarding the order, so it is 19 plausible that Menchaca did not have notice of the order. However, if he were truly 20 surprised by the stipulated order and did not wish to stipulate, he could have objected. 21 He did not object; thus, we attribute th e stipulated order and resulting delay to 22 Menchaca. 23 6 {9} Menchaca caused or contributed to delay throughout this case. As a 1 preliminary matter, Menchaca declined a pub lic defender and failed to retain private 2 counsel for nearly three months. Mench aca then caused delay by filing a joint motion 3 to continue on July 1, 2009, which the distri ct court granted, giving the parties a six4 month extension. We also attribute the December 29, 2009 stipulated order to 5 Menchaca because the continuance was re quested jointly by all of the parties. 1 The 6 continuance resulted in resetting the trial from January 19, 2010 to July 12, 2010, a 7 delay of approximately six months. Finally, Menchaca caused a two-week delay by 8 excusing Judge Schultz in February 2011. 9 {10} “[D]elay occasioned by the accused w ill weigh heavily against him.” State v. 10 Harvey , 1973-NMCA-080, ¶ 7, 85 N.M. 214, 510 P.2d 1085. We find a total of one 11 year and three months of de lay attributable to Menchaca. This delay weighs heavily 127 against him. 1 2. Delay attributable to the State 2 {11} The State bears the burden of moving the case forward. See Barker , 407 U.S. 3 at 527 (noting that “[a] defendant has no duty to bring himself to trial; the State has 4 that duty. . . .” (footnote omitted). Therefore, even administrative or negligent delay 5 will be attributed to the State and weighe d against the State, although not as heavily 6 as intentional efforts to harm the defense through delay. Garza , 2009-NMSC-038, ¶ 7 26. In this case, there is no evidence of intentional delay. The delay attributable to 8 the State is administrative or negligent. 9 {12} Judicial reassignments “fall[] within the administrative burdens on the criminal 10 justice system,” and delay resulting from judicial reassignments is “considered 11 negligent delay and is weighed against the State accordingly.” Id. ¶ 29. The delay 12 caused by the trial resetting pending Judge Bridgforth’s retirement is negligent delay 13 which weighs against the State. The St ate caused additional delay by excusing Judge 14 Murphy. Approximately two months el apsed between the reassignment to Judge 15 Murphy and the notice of assignment to JudgeSchultz. Therefore, approximately two 16 months of administrative delay caused by j udicial reassignments weighs against the 17 State. 188 {13} The remainder of the delay was caused by continuances. As discussed above, 1 we do not attribute to the State those con tinuances that were sought by the defense. 2 Menchaca concedes that he consented to or did not object to the State’s continuances. 3 The record shows that he either stipulated, took no position, or failed to object to each 4 continuance. Menchaca first stipulated to a motion for continuance on March 17, 5 2008, which the State requested due to the large volume of discovery and the lack of 6 forensic testing results available at the time. The district court granted the 7 continuance and extended the time limit for six months. This delay was for a valid 8 reason, and it does not weigh against the State. 9 {14} Menchaca took no position on the State’s September 25, 2008 petition to this 10 Court for a six-month extension of time to commence trial, which this Court granted. 11 Menchaca stipulated to the State’s March 13, 2009 petition to this Court for an 12 additional six-month extension of time to commence trial. Menchaca stipulated to yet 13 another extension of time on September 30, 2009, in the State’s second petition to the 14 district court for extension of time within wh ich to commence trial. The district court 15 granted the motion and extended the time limits by six months to April 1, 2010. On 16 March 30, 2010, Menchaca took no position on the State’s petition to the district court 17 for another six-month extension, which the district court granted. Thus, Menchaca 189 consented to four extensions, resulting ina delay of two years. Since Menchaca 1 consented to the continuances, the resulti ng delay weighs only s lightly against the 2 State. 3 {15} Of the nearly four-year delay, six months of delay was for a valid reason and 4 does not weigh against the State. Two months of administrative delay weigh against 5 the State. Two years of additional neutral delay weighs against the State, but only 6 slightly, because Menchaca consented to it. On the other hand, one year and three 7 months of delay weighs heavily agai nst Menchaca. Therefore, the second Barker 8 factor weighs slightly against the State. 9 C. Menchaca did not meaningfully assert his right to a speedy trial 10 {16} “The defendant’s assertion of his [or her] speedy trial right . . . is entitled to 11 strong evidentiary weight in determining wh ether the defendant is being deprived of 12 the right. We emphasize that failure to a ssert the right will make it difficult for a 13 defendant to prove that he was denied a speedy trial.” Barker , 407 U.S. at 531-32. 14 Although a defendant’s failureto assert the right doe s not necessarily constitute 15 waiver, “the timeliness and vi gor with which the right is asserted may be considered 16 as an indication of whether a defendant wa s denied needed access to speedy trial over 17 his [or her] objection or whether the i ssue was raised on appeal as afterthought.” 1810 Garza , 2009-NMSC-038, ¶ 32. As the court noted in Barker , defendants may choose 1 not to assert the right to speedy trial because“deprivation of the right may work to the 2 accused’s advantage. Delay is not an uncommon defense tactic.” 407 U.S. at 521. 3 {17} Under the third Barker factor, we examine both the timing and the manner of 4 the defendant’s assertion of the speedy trial right. Garza , 2009-NMSC-038, ¶ 32 5 (citing State v. Maddox , 2008-NMSC-062, ¶ 28, 145 N.M. 242, 195 P.3d 1254, 6 abrogation recognized by State v. Spearman , 2012-NMSC-023, ¶ 19, 283 P.3d 272). 7 “An early assertion of the speedy trial right indicates the defendant’s desire to have 8 the charges resolved rather than gambli ng that the passage of time will operate to 9 hinder prosecution.” Zurla v. State , 1990-NMSC-011, ¶ 19, 109 N.M. 640, 789 P.2d 10 588, modified on other grounds by Garza , 2009-NMSC-038, ¶¶ 21-22. Similarly, “the 11 closer to trial an assertion is made, the less weight it is given.” State v. Moreno , 2010- 12 NMCA-044, ¶ 33, 148 N.M. 253, 233 P.3d 782. 13 {18} The timing of Menchaca’s assertion wei ghs against him. Menchaca had the 14 opportunity to assert his speedy trial right on many occasions in the years leading up 15 to his trial, yet he failed to do so until trial was nearlyupon him. Menchaca failed to 16 assert his speedy trial right at two arraignments. He either s tipulated or failed to 17 object to any of the State’s requested conti nuances over almost four years. He also 1811 caused over one year of delay. Thus, Menchaca acquiesced to the delay, without 1 asserting his speedy trial right , until he filed a motion to dismiss the indictment less 2 than a month before trial began. Th is last-minute assertion does not support 3 Menchaca’s claim that he meaningfullyasserted his speedy trial right. See Barker , 4 407 U.S. at 534 (finding no speedy trial violation where “[d]espite the fact that 5 counsel had notice of the motions for c ontinuances, the record shows no action 6 whatever taken [for over three years] that could be construed as the assertion of the 7 speedy trial right” (footnote omitted)). 8 {19} Moreover, the manner in which Menchaca asserted his right weighs against 9 him. When a defendant’s last-minute assertion of the speedy trial right comes in the 10 form of a motion to dismiss the indictment , we accord little weight to the defendant’s 11 assertion of that right. See Maddox , 2008-NMSC-062, ¶¶ 29-31 (finding the 12 defendant’s motion to dismiss filed five days beforetrial was “neither timely nor 13 forceful” assertion of the right), abrogated on other grounds by Garza , 2009-NMSC14 038, ¶¶ 47-48; see also Tortolito , 1997-NMCA-128, ¶ 17 (finding the defendant’s late 15 assertion through a motion to dismiss di d not weigh in the defendant’s favor). 16 Menchaca asserted his right to a speedy trial in the form of a motion to dismiss the 17 indictment without offering an alternative motion for immediate trial. This indicates 1812 an attempt to secure the remedy of dismi ssal, but it does not indicate that Menchaca 1 actually intended to assert hi s right to a speedy trial. Cf. Barker , 407 U.S. at 535 2 (characterizing the defendant’s motion to dismiss without an alternative motion for 3 immediate trial as evidence that the defendant “hoped to take advantage of the delay 4 in which he had acquiesced, and thereby obtain a dismissal of the charges, [but] he 5 definitely did not want to be tried”). Under these circumstances, we determine that 6 Menchaca’s assertion of the speedy trial ri ght was neither timely nor forceful. The 7 third Barker factor does not weigh in his favor. 8 D. Menchaca was not prejudiced by the delay 9 {20} “The heart of the right to a speedy trial is preventing prejudice to the accused.” 10 Garza , 2009-NMSC-038, ¶ 12. Menchaca argue s that he suffered prejudice because 11 a potential witness, J.T. Melendres, diedduring the four years it took to bring 12 Menchaca to trial. Menchaca argues that Melendres’s testimony was essential to his 13 case because Melendres would have testified that he did not see Menchaca with Tapia 14 and Ramirez when they came to Melendres’s house to get a handgun before the 15 shooting. We conclude that Melendres’s death did not prejudice Menchaca. 16 {21} We analyze prejudice to the accused in lightof three interests: (1) preventing 17 oppressive pretrial incarcer ation, (2) minimizing the anxiety and concern of the 182Menchaca argued in the district court th at his lengthy pretrial incarceration was 14 oppressive because the jail was overcrowded , he had no opportunity to learn a skill 15 or continue his education, and he was deprived of direct physical contact with family 16 members. Menchaca fails to raise this argument on appeal. Therefore, we decline to 17 address it. See State v. Rendleman , 2003-NMCA-150, ¶ 50, 134 N.M. 744, 82 P.3d 18 554 (refusing to consider an argument made in the district court but not raised on 19 appeal), overruled on other grounds by State v. Myers , 2009-NMSC-016, ¶ 32, 146 20 N.M. 128, 207 P.3d 1105, reversed on other grounds by State v. Myers , 2011-NMSC21 028, ¶ 46, 150 N.M. 1, 256 P.3d 13. 22 13 accused, and (3) limiting the possibility th at the defense will be impaired. Garza , 1 2009-NMSC-038, ¶ 35. The defendant bear s the burden of production on the issue 2 of prejudice. Maddox , 2008-NMSC-062, ¶ 32. 3 {22} Although the length of Menchaca’s pretri al incarceration was considerable, 4 Menchaca does not argue that it was oppressi ve, nor the cause of excessive anxiety 5

or concern. 2“[W]ithout a particularized showi ng of prejudice, we will not speculate 6 as to the impact of pretrial incarcerati on on a defendant or the degree of anxiety a 7 defendant suffers.” Garza , 2009-NMSC-038, ¶ 35. Therefore, Menchaca has not 8 carried his burden regarding the first two interests of our prejudice analysis. 9 {23} Instead, Menchaca argues that he was prejudiced because his defense was 10 impaired by Melendres’s death in March 2011. “The third type of prejudice is the 11 most serious.” Id. ¶ 36 (internal quotation marks and citation omitted). As such, the 12 defendant must “state[] w ith particularity what exculpatory testimony would have 1314 been offered and . . . present eviden ce that the delay caused the witness’s 1 unavailability.” Id. (internal quotation marks and citations omitted). 2 {24} Menchaca has not shown that Melendres’s death caused actual prejudice to the 3 defense. Melendres was listed as a witne ss for the State. According to the State, 4 Melendres would have testified that Menc haca was a member of the Southside Royal 5 Knights gang, and that their gang color is re d. The State claims that Melendres would 6 have testified that he wa s friends with Menchaca and Ramirez, and Ramirez came to 7 his house the night of the party and told him that Menchaca got jumped and wanted 8 revenge. The State also claims that Melendres would have further testified that he saw 9 the getaway vehicle next to his house after the murder. Melendres’s testimony would 10 have supported the State’s case, not Menc haca’s. Although Menchaca reserved the 11 right to call Melendres, Melendres’s proposed testimony was not inherently 12 exculpatory. The fact that Melendres did not see Menchaca on the night of the 13 shooting does not establish that Menchaca did not commit the shooting. Thus, 14 Menchaca has not carried his burden regarding the third interest of our prejudice 15 analysis. 16 E. Balancing test 17 {25} Although Menchaca’s forty-seven month pre-trial delay was presumptively 1815 prejudicial, upon balancing the other Barker factors, we do not find a constitutional 1 violation. Menchaca agreed to delay his trial and did not assert his speedy trial right 2 until the trial was imminent. Additionally , Menchaca failed to show that he was 3 prejudiced by the delay. “[B]arring extraordinary circumstances, we would be 4 reluctant indeed to rule that a defendant was denied this constitutional right on a 5 record that strongly indicates, as does this one, that the defendant did not want a 6 speedy trial.” Barker , 407 U.S. at 536. We concludethat Menchaca’s constitutional 7 right to a speedy trial was not violated. We therefore affirm the district court’s denial 8 of his motion to dismiss. 9 II. MENCHACA HAS NOT ESTABLISHED THAT HIS COUNSEL WAS 10 INEFFECTIVE 11 {26} Menchaca argues that his trial counselwas constitutionally ineffective by 12 failing to assert Menchaca’s sp eedy trial rights earlier in th e proceeding. In addition, 13 Menchaca argues that his counsel was ine ffective by failing to properly impeach the 14 two co-defendants with their previous st atements. Neither of these arguments is 15 persuasive. 16 {27} When a claim of ineffective assistance of counsel is first raised on direct appeal, 17 we evaluate the fact s in the record. State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 18 657, 54 P.3d 61. In evaluating ineffective assistance of counsel claims, New Mexico 1916 follows the test established in Strickland v. Washington , 466 U.S. 668, 687 (1984). 1 See State v. Hester , 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. The 2 defendant must first show that counsel’s performance fell below that of a reasonably 3 competent attorney. Strickland, 466 U.S. at 687. The defendant must then show that 4 he was prejudiced by counsel’s deficient performance. Id. “A prima facie case for 5 ineffective assistance of counsel is not madeif there is a plausible, rational strategy 6 or tactic to explain the counsel’s conduct.” Lytle v. Jordan , 2001-NMSC-016, ¶ 26, 7 130 N.M. 198, 22 P.3d 666 (internal quotation marks and citation omitted). 8 {28} Menchaca has failed to make a prima f acie case of ineffective assistance of 9 counsel. Menchaca’s case was extremely comp lex due to the nature of the charges, 10 the number of co-defendants and witnesse s, and the volume of discovery, including 11 forensic evidence. To provide a comprehensive and effective defense, Menchaca’s 12 counsel may have made a strategic decision not to demand a speedy trial. One reason 13 not to demand a speedy trial could be the amount of forensic evidence in this case. 14 It took a long time for the forensic tests to be completed and provided to the parties. 15 It may have been wise for counsel to wait for the test results b ecause they could have 16 exonerated Menchaca or aided in his defense. 17 {29} Menchaca does not point to anything in th e record to show that his attorney’s 1817 failure to assert his speedy trial rights earlier was not a tactical decision. “Without 1 such prima facie evidence, the Court presumes that defense counsel’s performance fell 2 within the range of reasonable representation.” State v. Arrendondo , 3 2012-NMSC-013, ¶ 38, 278 P.3d 517. Because the record is not sufficient to establish 4 whether the actions taken by Menchaca’s counsel were reasonable, “this Court prefers 5 that these claims be brought under habeas corpus proceedings so that the defendant 6 may actually develop the record with re spect to defense counsel’s actions.” Id. 7 {30} Regarding the impeachment of Ramirez and Tapia, we conclude that based on 8 the record, Menchaca’s counsel properly and thoroughly impeached both witnesses. 9 During his cross-examination of Ramirez, Menchaca’s counsel asked Ramirez: 10 Q. This is now the fourth story you’ve given regarding the events that 11 occurred September 7th and September 8th of 2007, correct? 12 A. Yes, sir. 13 Q. And all your stories are different, are they not? 14 A. Yes, sir. 15 Q. And you said you have some of your stories to protect Moises? 16 A. Yes, sir. 17 Menchaca’s counsel then asked specific questions regarding Ramirez’s different 18 accounts. In fact, under questioning fro m Menchaca’s counsel, Ramirez admitted to 1918 lying in previous accounts: 1 Q. You never said anything about going back to J.T. Melendres’s 2 house. 3 A. I’m not sure what I said, sir. I don’t believe so. 4 Q. First story. 5 A. First story? I don’t remember it word for word what I said. I was 6 just lying. 7

. . . 8 Q. You gave your first story? 9 A. Yes, sir. 10 Q. Which was full of lies? 11 A. Yes, sir. 12 Q. You lied? 13 A. Yes sir. 14 Q. You lied to Detective Rosa? 15 A. Yes sir. 16 {31} Menchaca’s counsel also effectively imp eached Tapia. He specifically asked 17 Tapia about discrepancies between the first statement Tapia gave to police, which was 18 not recorded, and a later recorded statement given to Detective Edgar Rosa, refreshing 1919 Tapia’s recollection by presenting him withthe recorded statement. Menchaca’s 1 counsel concluded his impeachment of Tapia with the following exchange: 2 Q. So you’ve got a couple of different stories here, don’t you? 3 A. Yeah. 4 {32} Defense counsel’s impeachment of Ramirez and Tapia was thorough. 5 Menchaca’s counsel effectively placed the credibility of both witnesses at issue by 6 using their prior accounts of events to point out inconsistencies intheir trial testimony. 7 III. THE DISTRICT COURT PROPERLY ADMITTED MENCHACA’S 8 CELL PHONE RECORDS 9 {33} The shooting for which Menchaca was convi cted began with an altercation at 10 James Bonnett’s house party. That altercation ended w ith Bonnett punching 11 Menchaca in the face, knocking him uncons cious. Ramirez and Tapia then took 12 Menchaca and left the premises. After they left, Tapia and Bonnett spoke on the 13 phone. Tapia told Bonnett his behavior wa s “fucked up” and as ked why he hit “the 14 little homie.” Bonnett testifie d that he heard someone in the background say, “You 15 know what, fuck him. We’ll take care of it later.” 16 {34} Shortly before they returned to the party, Menchaca calle d Ramirez’s cousins, 17 who were still at the party, and told them to leave the house. Ramirez, Tapia, and 18 Menchaca returned to Bonnett’s nei ghborhood in an SUV. Menchaca got out, 1920 carrying weapons, and approached Bonnett’ s house on foot while Ramirez and Tapia 1 waited in the SUV. Menchaca called Tapia on his cell phone to ask them to move the 2 SUV closer to the house and then opened fire. 3 {35} Menchaca argues that the district court erred in admitting his cell phone records 4 through the testimony of Detective Rosa. Th e records admitted into evidence covered 5 all call details and text us age from September 7, 2007 to September 8, 2007 occurring 6 on a telephone number attributed to Menchaca. During Detective Rosa’s testimony, 7 Menchaca objected to the admission of his cell phone records on the basis of hearsay 8 and the Confrontation Clause of the Sixth Amendment. The district court ruled that 9 the cell phone records were admissible under Rule 11-902(K) NMRA (2007) and that 10 the records were not testimonialso as to require a Confrontation Clause analysis. On 11 appeal, Menchaca argues that the districtcourt’s ruling was erroneous on both the 12 hearsay and the Confrontation Clause issues. We disagree. 13 {36} “On review we defer to th e trial judge’s decision to admit or exclude evidence 14 and we will not reverse absent a clear abuse of discretion.” State v. Apodaca , 15 1994-NMSC-121, ¶ 23, 118 N.M. 762, 887 P.2d 756. Appellate courts review de 16 novo the question of whether the Confrontation Clause has been violated by the 17 admission of hearsay evidence. State v. Tollardo , 2012-NMSC-008, ¶ 15, 275 P.3d 1821 110. 1 {37} Under Rule 11-902(K), a certified record of a regularly conducted activity is 2 admissible as a self-authenticating document if it meets the requirements of Rule 11- 3 803(F) NMRA (2007). Rule 11-803(F) requires th at the record was “made at or near 4 the time by . . . a person with knowledge, if kept in the cour se of a regularly conducted 5 business activity, and [making the record] was the regular practice of that business 6 activity.” 7 {38} At trial, the State presented a subscrib ed and sworn certification of records from 8 the custodian of records for the cell phonecompany, Cricket Communications, Inc. 9 The certification meets all of the requirements of Rule 11-803(F). First, the 10 certification states “[t]he raw data contained in the records now provided was made 11 and captured by the computer at or near the time of the o ccurrence of the matters set 12 forth in the records.” SeeRule 11-803(F) (requiring that the record “was made at or 13 near the time” of its o ccurrence). The certification also states “[t]he raw data, and the 14 documents and records created and provided herein were and are kept in the usual 15 course of the regular business activity of Cricket Communications, Inc., and it was/is 16 the regular practice of Cricket Communicati ons to make and keep such raw data, 17 records, and documents.” SeeRule 11-803(F) (requiring that(1) the record was kept 1822 in the regular course of bus iness, and (2) making the reco rd was a regular practice of 1 the business). Because the certification of records presented by the State meets the 2 requirements of Rules 11-803 and 11-902, the district court did not abuse its discretion 3 in admitting Menchaca’s phone records. 4 {39} We now turn to Menchaca’s argument th at the admission of his phone records 5 violated his constitutional right to confront witnesses against him. Pursuant to the 6 Sixth Amendment to the United States Constitution, “[i]n all criminal prosecutions, 7 the accused shall enjoy the right . . . to be confronted w ith the witnesses against him 8 . . . .” This clause “bars the admission of testimonial statements of a witness who did 9 not appear at trial unless [the witness] was unavailable to tes tify, and the defendant 10 had . . . a prior opportunity for cross-examination.” State v. Gurule , 2013-NMSC-025, 11 ¶ 33, 303 P.3d 838 (internal quotation marks and citations omitted). A statement is 12 testimonial when its primary purpose “is to establish or prove past events potentially 13 relevant to later criminal prosecution.” State v. Navarette , 2013-NMSC-003, ¶ 8, 294 14 P.3d 435 (internal quotation marks and citation omitted). 15 {40} We agree with the district court’s determination that Menchaca’s phone records 16 are not testimonial. The records were notcreated for the purpose of proving facts 17 relevant to an element of a crime. As discussed supra , the phone records themselves 1823 were admissible as business records under Rule 11-902(K). Business records by their 1 nature usually are not testimonial. See Crawford v. Washington , 541 U.S. 36, 56 2 (2004) (“Most of the hearsay exceptions covered statements that by their nature were 3 not testimonial—for example, business reco rds or statements in furtherance of a 4 conspiracy.”). In addition, an affidavit that merely auth enticates an admissible record, 5 such as the one presented in this case, is excepted from confrontation requirements. 6 See Melendez-Diaz v. Massachusetts , 557 U.S. 305, 322-23 (2009) (“A clerk could 7 by affidavit authenticateor provide a copy of an otherwise admissible record, but 8 could not . . . createa record for the sole purpose of providing evidence against a 9 defendant.”). 10 IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN 11 DENYING MENCHACA’S MOTION FOR AN EVIDENTIARY 12 HEARING ON PROSECUTORIAL MISCONDUCT 13 {41} Menchaca alleges that the prosecuti on engaged in misconduct by tampering 14 with witnesses. He claims that after Tapi a pled but before Menchaca’s trial, a state 15 investigator removed Tapia from jail and took him to the District Attorney’s Office, 16 where the investigator discussed Ramirez’s story with Tapia, giving Tapia details of 17 what Ramirez said during a previous meeting with prosecutors. At trial, Menchaca’s 18 counsel requested an evidentiary hearing on th e issue. The district court denied the 1924 motion. 1 {42} We review the district court’s ruling on the issue of prosecutorial misconduct 2 under a deferential abuse of discretion standard. State v. Trujillo , 2002-NMSC-005, 3 ¶ 49, 131 N.M. 709, 42 P.3d 814. “[T]he trial court is in the best position to evaluate 4 the significance of any allege d prosecutorial errors.” State v. Duffy , 1998-NMSC-014, 5 ¶ 46, 126 N.M. 132, 967 P.2d 807, overruled on other grounds by Tollardo , 2012- 6 NMSC-008, ¶ 37 n.6. “The trial court’s determination of these questions will not be 7 disturbed unless its ruling is arbitrary, capricious, or beyond reason.” Id. 8 {43} The district court did not abuse its discretion in denying Menchaca’s motion for 9 an evidentiary hearing on the issue of pros ecutorial misconduct. The district court 10 noted that it is not improper for either the State or the defense to interview a potential 11 witness who is no longer a co-defendant and to acquire additional information from 12 that witness. In addition, the districtcourt gave Menchaca’ s counsel the opportunity 13 to question Tapia about what had occurred later in the proceedings. During cross14 examination, Menchaca’s counsel asked Tapi a about Tapia’s interview with the state 15 investigator. Tapia only stated that De tective Rosa asked him about his cell phone 16 number; Tapia did not mention any discussion of Ramirez’s story. 17 V. THE DISTRICT COURT DID NOT ERR IN ADMITTING 18 MENCHACA’S RED SHIRT AND CELL PHONE 1925 {44} Menchaca’s red shirt was significant at his trial because the altercation at 1 Bonnett’s house party began when a guest insulted Menchaca over the color of his 2 shirt by falsely implying that Menchaca was part of a gang whose members wore red. 3 The shirt was also significant because at least one witness testified that she saw a man 4 in a red shirt pacing in front of the house around the time of the shooting. 5 {45} After Menchaca called Tapia on his cell phone and asked his co-defendants to 6 move closer to the residence, Menchaca s hot at the house. At least two witnesses 7 testified that they saw a man in a red shirt around the time of the shooting. 8 {46} Menchaca argues that the district court erred in admitting hi s red shirt and cell 9 phone into evidence without a proper chain of custody. The two ite ms were recovered 10 through a consensual search of Menchaca’s residence. We conclude that a proper 11 chain of custody was established for the admission of both items through the 12 testimony of Detective Raul Ortiz. 13 {47} “On review we defer to th e trial judge’s decision to admit or exclude evidence 14 and we will not reverse absent a clear abuse of discretion.” Apodaca , 15 1994-NMSC-121, ¶ 23. “[T]o admit real or demonstrative evidence, the evidence 16 must be identified either visually or by establishing custody of the object from the 17 time of seizure to the time it is offered into evidence.” State v. Rubio , 2002-NMCA- 1826 007, ¶ 16, 131 N.M. 479, 39 P. 3d 144 (internal quotation marks and citation omitted). 1 “The admission of real or demonstrativ e evidence does not require the State to 2 establish the chain of custody in suffici ent detail to exclude all possibility of 3 tampering.” State v. Rodriguez , 2009-NMCA-090, ¶ 24, 46 N.M. 824, 215 P.3d 762. 4 There is no abuse of discretion when a preponderance of the evidence shows the 5 evidence “is what it purports to be.” State v. Sanchez , 1982-NMCA-155, ¶ 15, 98 6 N.M. 781, 652 P.2d 1232. 7 {48} The record reflects that Detective Ortiz sufficiently identified the chain of 8 custody for Menchaca’s red shirt and cell phone to be admitted into evidence. 9 Detective Ortiz testified that he was invol ved in the search of Menchaca’s home along 10 with Detective Mike Garcia, and that he was present when the red shirt and cell phone 11 were located in Menchaca’s bedroom. Detective Ortiz c onfirmed that he personally 12 observed Detective Garcia recover the phoneand the red shirt and he confirmed 13 Detective Garcia’s signature on the recoverybag. Detective Ortiz identified the cell 14 phone as State’s Exhibit 117 and the red shirt as State’s Exhibit 116. 15 VI. SUFFICIENCY OF THE EVIDENCE 16 {49} Menchaca argues that his conviction wa s not supported by substantial evidence. 17 He specifically claims that the evidence presented at trial was not sufficient to prove 1827 that he was the actual shooter. Menchaca al so questions the credibility of several of 1 the State’s witnesses. According to Menc haca, the evidence presented at trial points 2 to Tapia as the shooter. 3 {50} “The test to determine the sufficiencyof evidence is whether substantial 4 evidence of either a direct orcircumstantial nature exists to support a verdict of guilt 5 beyond a reasonable doubt with respect to ev ery element essential to a conviction.” 6 State v. Montoya , 1984-NMSC-073, ¶ 4, 101 N.M. 424, 684 P.2d 510. “A reviewing 7 court must view the evidence in the light most favorable to the state, resolving all 8 conflicts therein and indulging all permissibl e inferences therefrom in favor of the 9 verdict.” State v. Sutphin , 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. An 10 appellate court should not re-weigh the ev idence to determine whether there was 11 another hypothesis that would support the de fendant’s innocence or substitute its view 12 of the evidence for that of the fact-finder. State v. Garcia , 2005-NMSC-017, ¶ 12, 13 138 N.M. 1, 116 P.3d 72. 14 {51} An abundance of evidence in the recordpoints to Menchaca as the shooter. 15 Tapia testified that it was Menchaca’s idea to go to Melendres’s house, where Tapia 16 and Ramirez picked up a handgun. Ramirez testified that he, Tapia, and Menchaca 17 returned to Bonnett’s house, intending to shoot it up. Both Tapia and Ramirez 1828 testified that when they arrived at B onnett’s house, Menchaca left the vehicle and 1 approached Bonnett’s house with at least onegun in his hand. At least two guests at 2 the party testified that they saw someonewearing a red shirt around the time of the 3 shooting. Both Tapia and Ramirez also testified that Me nchaca returned to the SUV 4 after the shooting with both guns. Ramirez identified Menchaca in court as the 5 shooter. We therefore conclude thatMenchaca’s conviction was supported by 6 substantial evidence. 7 {52} Menchaca’s theory that Tapia was th e shooter was rebutted by both Ramirez 8 and Tapia. Ramirez specificallytestified that Tapia did not pull the trigger on either 9 of the two guns. Tapia testified that hesaw Menchaca exit the SUV with both guns, 10 heard shots, and then saw Menchaca running back to the SUV withthe guns. In light 11 of the foregoing evidence, we conclude th at there was substantial evidence for a 12 reasonable jury to convict Menchaca of first degree murder. 13 CONCLUSION 14 {53} Because the issues raised inMenchaca’s appeal are without merit, we affirm all 15 of his convictions. 16 {54} IT IS SO ORDERED. 17

______________________________ 1829 EDWARD L. CHÁVEZ, Justice 1

WE CONCUR: 2

___________________________________ 3 PETRA JIMENEZ MAES, Chief Justice 4

___________________________________ 5 RICHARD C. BOSSON, Justice 6

___________________________________ 7 CHARLES W. DANIELS, Justice 8

___________________________________ 9 BARBARA J. VIGIL, Justice 10